It might be somewhat risky to confess this to conservative website readers,
but I am not the biggest fan of Roy Moore. Moore, you may recall, was bounced
from his elected position as chief justice of the Alabama supreme court for
refusing to take down his display of the Ten Commandments in the rotunda
of the judiciary building despite a federal court order to do so. He argued
that his compliance would require him to acquiesce to an unlawful ruling
and violate his obligation to acknowledge God as the source of our liberty.

While I thought there was more merit to the substance of his argument than
his establishment critics supposed, something wasn't quite right about the
way he was going about the issue. It didn't seem to me at the time that it
was appropriate for judges to go around picking and choosing which court
orders they would follow, especially without extending this privilege to
ordinary citizens living under their jurisdiction. Moore's tactics seemed
suspiciously well designed for maximum publicity and minimum efficacy. More
effective Christian conservative consuls, like Jay Sekulow of the American
Center for Law and Justice, accordingly distanced themselves from his legal
strategy.

There was also just something about the whole Ten Commandments tug-of-war
that, however much I opposed the secular humanism of Moore's critics, didn't
strike me as the most effective Christian witness. It was too much about
power and not enough about grace. It conveyed to unbelievers the message
that Christians wanted to rule more than anything else. Certainly, there
is nothing in the First Amendment or anywhere else in the Constitution – as
written by the Framers rather than as mangled by the past half-century of
liberal jurisprudence – that prohibits the public display of the Ten
Commandments. But where in the Bible is it written that the secular state
is an appropriate instrument for the Great Commission?

When I wrote about these doubts a few months ago, many readers responded
in their e-mails that I just didn't comprehend the extent to which the American
constitutional order was being subverted. Imperial jurists were concocting
increasingly outlandish doctrines, reshaping our laws and often wreaking
social havoc in the process. Was it my solution that conservatives and Christians
should just meekly accept whatever crinkled mess these paper mache artists
masquerading as jurists want to make out of the Constitution and our culture
to boot?

These thoughts occurred to me once again over the last few months as the
marriage debate has intensified and the courts have taken center stage. A
bare majority of the Massachusetts Supreme Judicial Court took it upon itself
to project its view that traditional marriage is arbitrary, discriminatory,
bigoted and little more than an expression of exclusivist hatred. To be sure,
these judges believed they were acting out of compassionate motives to open
marriage to progressively more people, thereby improving upon the original.

But as Don Browning and Elizabeth Marquhardt wrote in no less an establishment
organ than the New York Times, "Legalizing same-sex marriage does not
simply extend an old institution to a new group of people. It changes the
definition of marriage, reducing it primarily to an affectionate sexual relationship
accompanied by a declaration of commitment. It then gives this more narrow
view of marriage all of the cultural, legal and public support that marriage
gained when its purpose was to encourage and temper a more complex set of
goals and motivations."

Yet not only did the Bay State SJC seek in its Goodridge decision to reshape
a fundamental social institution it did not understand; it did so citing
laws and constitutional provisions that in many cases the voters were explicitly
reassured did not redefine marriage when they were originally written and
enacted. Eve Tushnet, writing in the National Catholic Register, described
this as a constitutionally dubious bait-and-switch: "The Massachusetts
court is saying to citizens, ‘You all go ahead and vote for the laws.
Then we'll tell you what you really voted for. Don't expect it to look much
like what you thought you agreed to.'"

Although a majority of the Massachusetts legislature opposes Goodridge,
as evidenced by its recent vote for a constitutional amendment to overturn
it, no legislative leader looked at these circumstances and seriously recommended
impeachment as the solution. Margaret Marshall will not face the fate of
Roy Moore.

Perhaps you may argue that this is an unfair comparison. Goodridge, no matter
how ill-conceived and anti-constitutional this writer believes it to be,
was nevertheless arguably a legitimate exercise of judicial review while
Moore's was an act of unlawful defiance. Removal from office is acceptable
for misconduct, unacceptable as a penalty for differing legal interpretations.

Leaving aside whether this an accurate framing of the issue, what then should
we make of the spate of disobedience by liberal elected officials who issued
marriage licenses to same-sex couples in blatant disregard of the law? San
Francisco Mayor Gavin Newsom ordered his staff to issue such licenses on
the grounds that to do otherwise would violate equal-protection clause of
California's state constitution, This was despite the fact the opposite policy
is written into state law, as affirmed by 61 percent of California voters
in a referendum. If it is acceptable for Newsom to defy higher public authorities
in the belief that his position is the constitutionally valid one, why shouldn't
Moore be allowed to do the same?

Copycats issuing same-sex marriage licenses ensued from New York to New
Mexico. All of these officials remain in office. Aside from some short-lived
bluster about throwing New Paltz, New York's young Green mayor Jason West
in the hoosegow, none of them faced the serious prospect of removal from
office or any other significant punishment. The moral of the story: If a
federal judge tells you to take down a religious display, you must comply
or be removed from office; defy your state's voters and legislators in the
name of a progressive cause, and that's just fine. The courts were markedly
less eager to jump in on behalf of same-sex marriage opponents than people
who were offended by the Ten Commandments display. The "living Constitution" only
grows in the leftward direction.

Although I am still by no means persuaded, it is enough to make you wonder
if Moore's approach wasn't right. Maybe accepting constitutionally suspect
edicts from the left as legitimate when they do not consider themselves bound
by laws more favorable to traditionalists constitutes unilateral disarmament
in the culture war. Maybe I have misjudged the extent to which the old order
and constitutional process have withered.

Conservatives might have another opportunity to consider this possibility
in the upcoming presidential election. There are building rumors – and
in some quarters, ardent hopes – that Moore might be talked into seeking
the Constitution Party's nomination for president. Howard Phillips is not
running for president again this year and had always hoped to be a placeholder
until a bigger-name defector from the Republican Party's right – maybe
a Pat Buchanan, Alan Keyes or former Sen. Bob Smith – agreed to be
the standard bearer. So far, there have been no takers. The only declared
candidate for the Constitution Party nomination so far is Michael Petrouka,
an even less well known conservative who chairs the Maryland state party
and sits on the board of Phillips' Conservative Caucus.

But Moore has spoken to a number of Constitution Party gatherings throughout
the country. Even some liberal pundits, such as Slate's Timothy Noah, have
been encouraging speculation that he will run because they think he would
be able to help deny President Bush a second term. Moore might be able to
energize voters who feel the Republicans have been noncommittal at best on
the issues that matter most to them. In addition to causes frequently associated
with the Christian right, he also has a huge opening in the form of the president's
guest-workers/quasi-amnesty proposal.

I'm still not sold on the Ten Commandments Judge, nor have I signed on to
the campaign to draft him to run as the Ten Commandments president. But it's
hard to be down on the man who gave us Roy's rock when so many of his former
colleagues are offering a ruined republic.